Director of Public Prosecutions & another v Barasa & another

4. In response to the respondent’s replying adavit, the applicants led a further adavit sworn by Dr. Solomon Kiawa on 17th July 2026 in which they likewise address themselves on the merits of the appeal in rebuttal to the respondent’s arguments. 5. This prompted the respondent to le two additional adavits sworn on 21st July 2026 and 15th August 2026 by which he advanced further arguments on the merits of the applicants’ intended appeal, which for the moment, exceeds the remit of this Court. 6. On its part, the Interested Party, the Public Service Commission, did not le any adavit in reply. 7. Briey stated, the salient facts that prompted the applicants’ Motion before us were that the respondent, Mark Nabuyumba Barasa, a career public prosecutor who had risen to the rank of Senior Assistant Director of Public Prosecutions (SADPP), petitioned the ELRC challenging the manner in which the ODPP conducted recruitment to the positions of Senior Deputy Director of Public Prosecutions (DPP 2) and Deputy Director of Public Prosecutions (DPP 3). He contended that, despite being qualied and experienced, he was omitted from the shortlist published on 26 January 2026, while comparatively junior ocers and ocers serving on secondment were shortlisted. 8. After he questioned his exclusion, he was subsequently invited to an interview, but was unsuccessful. Consequently, he alleged that the process was arbitrary, discriminatory, procedurally unfair and contrary to Articles 10, 27, 41, 47, 73 and 232 of the Constitution. In addition, the petition alluded to the petitioner's earlier disagreement with the DPP concerning prosecutorial decisions he had made in certain matters. He further alleged that he had subsequently been issued with a notice to show cause and deployed to the Prosecution Training Institute, which he regarded as victimisation and a constructive removal from prosecutorial duties. 9. The applicants denied the allegations contained in the respondent’s petition and maintained that the recruitment was merit- based and lawful. Accordingly, the main issue that called for determination by the ELRC was whether the recruitment process satised the constitutional requirements governing appointments and promotions in the public service. 10. In its judgment, the Court concluded that the impugned recruitment process was characterised by procedural impropriety and lack of demonstrable transparency; that it was not sucient for the respondents merely to assert that the recruitment was undertaken on merit; that they had to be able to demonstrate, through objective records, how the candidates were shortlisted, assessed and ultimately selected; and that the absence of that evidence meant that the constitutional compliance of the process could not be established. In addition, the Court found in favour of the respondent on the alleged violation of his right to fair administrative action, particularly in relation to the applicants’ failure to provide information concerning the recruitment process for which he had requested. Accordingly, the Court held, in substance, that the recruitment process for the DPP 2 and DPP 3 positions fell below the constitutional threshold of fairness, transparency, merit and accountability; and that, consequently, the appointments resulting from that process could not stand and were declared null and void. 11. By reason of the matters aforesaid, the trial court allowed the respondent’s petition with the following orders: “ 36. The Respondent shall re-advertise the positions and invite eligible candidates to express their interest and thereafter conduct a transparent, credible and auditable recruitment process. …. …. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1827/eng@2026-09-25 2

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39. The Petitioner is awarded the sum of Kshs.1,000,000. Being an employment disputes and parties are still in an employment relationship, it is only fair that parties bear their own costs.” 12. Aggrieved by the learned Judge’s decision, the applicants moved to this Court on appeal on a whopping 17 grounds set out in their memorandum of appeal dated 6th July 2026, including three which clearly stand out, namely that the learned judge erred in law and in fact by: nding that the Appellants' impugned processes fell below the constitutional threshold, and that the impugned selection process was characterized by procedural impropriety and therefore awed; failing to consider that the Respondent had not exhausted the available internal mechanisms whose availability he had himself expressly acknowledged; and by improperly awarding damages to the Respondent, without a proper basis, and without clearly apportioning the same. 12. On the basis of the 17 grounds aforesaid, learned counsel for the applicants, Mr. Peter Juma Owiti, Principal Prosecution Counsel, led written submissions and case digest dated 17th July 2026 and of which he made oral highlights when the Motion came for hearing before us on the Court’s virtual platform on 17th August 2026. Counsel cited the cases of National Assembly and Another v Okiya Omtatah Okoiti & 58 Others [2024] KECA 39 (KLR); and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, highlighting the twin principles for grant of stay orders under rule 5(2)(b) of this Court’s Rules; and Gatirau Peter Munya v Dickson Mwenda Kithinji [2014] eKLR, submitting that it is in the public interest that the stay orders sought be granted. 12. In rebuttal, the respondent led written submissions and a case digest dated 28th July 2026 followed by additional written submissions dated 7th August 2026, both of which he highlighted orally at the hearing of the applicants’ Motion. He cited 6 judicial authorities, the relevant ones of which are: Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra), submitting on the twin principles for grant of stay orders pursuant to rule 5(2) (b); Kenya Power and Lighting Company Limited v George Joseph Kang’ethe & Another [2020] KECA 33 (KLR), submitting that, for stay of a monetary award to be granted, the applicant must demonstrate that the decretal amount is so colossal that it would cause ruin, or that the respondent is a person of straw who would be absolutely unable to refund the money if the appeal succeeds; and Gatirau Peter Munya v Dickson Kithinji Mwenda & 2 Others (supra), submitting that public interest demands that, where an impugned recruitment process is constitutionally defective, maintaining the status quo prevents illegal appointments from being nalised, thereby preserving the substratum of the dispute and protecting the rule of law. 12. Notably, the Interested Party did not submit on the applicants’ Motion. 12. The applicable twin principles in the exercise of the Court’s unfettered discretion under rule 5(2) (b)of the Court of Appeal Rules, 2022 to grant an order of stay are well settled. Firstly, an applicant has to satisfy that he or she has an arguable appeal. Secondly, he or she has to demonstrate that, unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory. These principles have been restated time and again and amplied by this Court in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others (supra). It is essential to point out that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully. Further, it is sucient if the appeal raises only one arguable issue (see: University of Nairobi v Ricatti Business of East Africa [2020] eKLR). 12. In addition to the foregoing, the Supreme Court’s decision in Gatirau Peter Munya v Dickson Mwenda Kithinji (supra) adds a third layer of principles applicable in determining Motions for stay pending appeal by holding that, in addition to the two conditions for granting an order of stay of execution, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1827/eng@2026-09-25 3

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“… the courts ought to consider the condition whether it would be in the public interest that the order of stay be granted.” 12. The applicants submitted that they have an arguable appeal with overwhelming chances of success and that, if the stay orders sought are not granted, it would be rendered nugatory. Accordingly, they pray that their Motion be allowed as prayed. Conversely, the respondent submits that the intended appeal is not arguable. According to him, the applicants have failed to establish that the intended appeal is arguable and that, absent stay, the intended appeal would be rendered nugatory. Accordingly, he urges us to dismiss the applicants’ Motion. 12. On the rst limb of arguability, one of the grounds advanced is that the trial court's orders nullifying the promotions were made without any of the more than forty aected ocers (none of whom is a party to these proceedings) having been heard. It is not disputed that these ocers have already been promoted and stand to be directly and adversely aected by the orders under appeal. The principle that no person's rights should be determined without aording them an opportunity to be heard as necessary parties is well settled (see: Mbaki & Others v Macharia & Another [2005] 2 EA 206. Accordingly, we are satised, without pronouncing ourselves on the point with nality, that this raises an arguable question going to the fairness of the process by which the nullication was arrived at, sucient to meet the rst limb of the test. In addition to the ground aforesaid, a cursory look at the totality of the grounds of appeal set out in the applicants’ memorandum of appeal reveals that those grounds are by no means frivolous. At the very least, one or more of them are, in our considered view, arguable. 20. On the nugatory aspect, it was held in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra) that, whether or not an appeal will be rendered nugatory, depends on whether or not what is or ought to be stayed, if allowed to happen, is reversible; or if not reversible, whether damages would reasonably compensate the aggrieved party. We are also guided by the observations made in Reliance Bank Limited v Norlake Investment Limited (2002) 1 EA 227 that factors which render an appeal nugatory are to be considered within the circumstances of each case and, in so doing, the Court is bound to consider the conicting claims of both sides. 20. It is noteworthy that the fourty or so ocers in question are non- parties whose promotions would stand nullied if the trial court's orders were to be enforced pending appeal notwithstanding that they were never heard. Should the appeal ultimately succeed, that harm, including the practical unwinding of appointments already made and acted upon, and the disruption to the aected ocers' status, remuneration, and standing, would not be readily reversible by an order of this Court made after the fact. We are conscious that the term "nugatory" is not conned to outcomes that are worthless or futile, but extends to those that would be substantially triing or dicult to reverse in practical terms. 20. Turning to the point relating to the applicants’ submission on the requisite respect for natural justice with regard to the more-than- fourty ocers that were promoted but are not party to the proceedings before us, we take to mind the case of Mbaki & Others v Macharia & Another (supra), where the Court of Appeal held that the right to be heard is a valued right, and it would oend all notions of justice if the rights of a party were prejudiced or aected without that party being aorded an opportunity to be heard. In our considered view, those ocers are arguably necessary parties whose absence might be fatal to adverse orders as expounded in Departed Asians Property Custodian Board v Jaer Brothers Ltd [1999] 1 EA 55. 20. Balancing the interests of the parties before us against the interests of the non-party ocers and the public interest in the integrity of the promotion process, and mindful that our discretion under rule 5(2) (b) is wide but must be exercised judicially and not merely to frustrate the respondent's judgment, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1827/eng@2026-09-25 4

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we nd that a stay of the trial court's orders is warranted pending the hearing and determination of the appeal. 20. For the avoidance of doubt, nothing in this ruling determines the substantive question whether the aected ocers ought to have been joined or heard before the trial court. That question remains a live ground for argument at the hearing of the appeal. Having said that, we make no denitive or nal ndings of fact or law on any issue in contention lest we embarrass the bench that is destined to determine the appeal. 20. Having carefully considered the applicants’ Motion, the adavits in support and in reply thereto, the grounds on which it is anchored, the rival submissions, the cited authorities and the law, we nd that the applicants have satised the conjunctive limbs of the twin principle for grant of the stay orders sought. Accordingly, their Notice of Motion dated 7th July 2026 is hereby allowed. Consequently: a. the judgment and decree of the ELRC at Nairobi (J. K. Gakeri, J.) delivered on 25th June 2026 be and is hereby stayed pending hearing and determination of the intended appeal; and b. considering the public interest in the intended appeal, each party shall bear their own costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 S. GATEMBU KAIRU (P), FCIArb, CArb. .................................. JUDGE OF APPEAL J. LESIIT ........................................... JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1827/eng@2026-09-25 5

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